Citation Nr: 0005276 Decision Date: 02/29/00 Archive Date: 03/07/00 DOCKET NO. 94-24 462 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania THE ISSUE Entitlement to restoration of a total rating for compensation purposes based on individual unemployability. REPRESENTATION Appellant represented by: Blinded Veterans Association ATTORNEY FOR THE BOARD Richard V. Chamberlain, Counsel INTRODUCTION The veteran had active service from January 1953 to October 1955. This appeal comes to the Board of Veterans' Appeals (Board) from a March 1994 RO rating decision that terminated the veteran's total rating for compensation purposes based on individual unemployability. FINDINGS OF FACT 1. Service connection is in effect for keratoconus of the eyes, rated 70 percent. 2. The nonmedical evidence is clear and convincing and shows that the veteran is actually employable and has been following a substantially gainful occupation for many years. CONCLUSION OF LAW The criteria for restoration of a total rating for compensation purposes based on individual unemployability are not met. 38 C.F.R. §§ 3.340, 3.341, 3.343, 4.16 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION A. Factual Background The veteran had active service from January 1953 to October 1955. Service medical records show that the veteran underwent keratoplasty of the left eye in January 1955 and keratoplasty of the right eye in May 1955. These records note that he had keratoconus of both eyes that existed prior to service and that was aggravated by active service. A December 1955 RO rating decision granted service connection for keratoconus of the eyes, and assigned a 40 percent rating for this condition. This evaluation was effective from November 1955. A July 1968 RO rating decision increased the evaluation for the keratoconus of the eyes from 40 to 70 percent, effective from December 1967. A private medical report dated in July 1990 shows that the veteran was employed as school principal and that he had uncontrolled hypertension that was being treated with various medications. It was noted that he had been given a leave of absence and recommended to take less stressful employment. On an application for increased compensation based on unemployability dated in November 1990, the veteran reported that he had last worked in June 1990 as a school principal. He reported that he had a college education. A statement from the veteran's former employer dated in January 1991 reveals that the veteran last worked in June 1990. It was noted that he was on sick leave and that his last paycheck would be in January 1991. The veteran underwent VA examinations in January 1991. The reports of these examinations indicate that he was essentially blind in the right eye and had best corrected distant vision in the left eye of 20/30 with contact lenses and glasses. The assessments on a report of eye examination were blind right eye secondary to opaque cornea and end-stage glaucoma; post-keratoplasty of the left eye with decreased vision secondary to transplant clouding; and minimal cataract of the left eye. A March 1991 RO rating decision granted the veteran a total rating for compensation purposes based on unemployability due to his service-connected bilateral eye condition. The total rating was effective from November 1990. On correspondence dated in December 1992, the veteran reported that he continued to be incapable of engaging in full-time employment due to his bilateral eye condition and hypertension. An income verification form showed income of $22,398.00 for 1991, and no income for 1992. This form was completed and certified by the veteran's former employer in January 1993. VA medical reports show that the veteran was treated and evaluated for eye problems from 1991 to 1999. The more salient medical reports with regard to the issue of entitlement to restoration of a total rating for compensation purposes based on individual unemployability are discussed in the following paragraphs. The veteran underwent a VA eye examination in May 1993. The best correct visual acuity in the right eye was light perception no direction. In the left eye with his contact with no glasses he was 20/50-2+2. With his present glasses he was 20/20-1 J1 for reading. The impressions were right eye blind secondary to optic nerve head, history of optic nerve head damage and corneal opacification; mild graft opacification, however, the anterior chamber was clear and there was no sign of any graft rejection; there was mild superficial punctate keratitis in the left eye, most likely secondary to his contact lens wear; and severe arteriosclerosis in the left eye. On an employment questionnaire dated in May 1993, the veteran reported that he had been earning around $1100. per month since April 1993. He reported that he could not work full- time because of his eye condition and hypertension. A December 1993 RO rating decision proposed terminating the veteran's total rating for compensation purposes based on individual unemployability because the evidence showed he was not unemployable due to his service-connected disability alone. In a January 1994 letter, the RO notified the veteran of the December 1993 RO rating decision proposing to terminate his total rating for compensation purposes based on unemployment and the reason. He was given 60 days to submit additional evidence. A March 1994 RO rating decision terminated the veteran's total rating for compensation purposes based on unemployability because it was determined that he was not unemployable due to his service-connected eye disability alone. The total rating was terminated on June 30, 1994. This rating decision shows that the bilateral eye condition is the veteran's only service-connected disability, and the evidence does not show that service connection has been granted for any other disability. This rating decision shows that the veteran is entitled to special monthly compensation on account of loss of the use of one eye and that he is entitled to automobile and adaptive equipment. On an employment questionnaire dated in May 1994, the veteran reported that he was earning around $1100. per month. On an income verification form dated in October 1995, the veteran's employer reported that he was working full time. It was noted that the veteran's income in 1993 was $15,055.09, $16,158.34 in 1994, and $16,734.38 in 1995. The veteran underwent a VA eye examination in December 1995. He only had light perception in the right eye. On the left eye corrected at distance with contact lens only the visual acuity was 20/70+2, left eye corrected with contact lens and spectacles at far was 20/25-1, and at near J2. At a VA eye examination in November 1997, it was noted that the veteran had had a penetrating keratoplasty in his left eye. A penetrating keratoplasty in his right eye was reported as unsuccessful due to graft rejection. It was also noted that he had had a prior right eye penetrating keratoplasty that rejected. He had bare light perception in the right eye, no direction. Visual acuity best corrected in the left eye was 20/25-1+1. He was given a Humphrey visual field, primarily for comparison with a previous visual field that was reportedly normal. There was some relative anterior field loss and some relative constriction, but it was actually better than his first visual field constriction. The impression was right eye blind. It was noted that he had mild exotropia in the right eye and ptosis in both eyes, worse in the right. The left eye had scarring of his cornea and superior corneal vascularization that seemed to be pretty stable. He had pigmentary glaucoma, actually ocular hypertension that seemed to be stable. On examination he also had full extraocular muscle movements. The pupil on the right was reactive to light and accommodation. In January 1999, the veteran underwent a VA eye examination. He had light perception in the right eye. In the left eye with contact, visual acuity was 20/40-1; over correction, 20/25, Jaeger 2 minus in the left eye. The impressions were blind right eye with almost complete ptosis, minimal ptosis of the left eye, and chronic open angle glaucoma of the left eye. He was scheduled for a Goldman visual field examination that was performed in February 1999. An addendum to the report of the January 1999 eye examination notes that the Goldmann field in the left eye showed nasal and superior constriction that could be secondary to his chronic open angle glaucoma of the left eye. The medical evidence shows that the veteran has various non- service-connected disabilities. Private medical reports show that he underwent surgeries in 1994 and 1996 for non-service- connected disabilities. A September 1999 RO rating decision notes that the veteran's visual acuity of light perception in the right eye and corrected visual acuity of 20/25 and superior constriction of vision in the left eye with average constriction of 45 degrees supported no more that a 50 percent evaluation for the bilateral eye condition. The 70 percent evaluation was continued because it was protected. B. Legal Analysis The appellant's claim for restoration of a total rating for compensation purposes based on individual unemployability is well grounded, meaning it is plausible. The Board finds that all relevant evidence has been obtained with regard to the claim and that no further assistance to the appellant is required to comply with VA's duty to assist him. 38 U.S.C.A. § 5107(a) (West 1991). In general, disability evaluations are assigned by applying a schedule of ratings (rating schedule) which represent, as far as can practicably be determined, the average impairment of earning capacity. 38 U.S.C.A. § 1155. Although the regulations require that, in evaluating a given disability, that disability be viewed in relation to its whole recorded history, 38 C.F.R. § 4.41, where entitlement to compensation has already been established, and an increase in the disability rating is at issue, it is the present level of disability which is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Also, where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Total disability ratings, when warranted by the severity of the condition and not granted purely because of hospital, surgical or home treatment, or individual unemployability, will not be reduced, in the absence of clear error, without examination showing material improvement in physical or mental condition. Examination reports showing material improvement must be evaluated in conjunction with all the facts of record, and consideration must be given particularly to whether the veteran attained improvement under the ordinary conditions of life, i.e., while working or actively seeking work or whether the symptoms have been brought under control by prolonged rest, or generally, by following a regimen that precludes work, and, if the latter, reduction of total disability ratings will not be considered pending reexamination after a period of employment (3 to 6 months). 38 C.F.R. § 3.343(a) (1999). In reducing a rating of 100 percent service-connected disability based on individual unemployability, caution must be exercised in such a determination that actual employability is established by clear and convincing evidence. 38 C.F.R. § 3.343(c) (1999). Rating agencies will handle cases affected by change of medical findings or diagnosis, so as to produce the greatest degree of stability of disability evaluations consistent with the laws and VA regulations governing disability compensation and pension. It is essential that the entire record of examinations and the medical-industrial history be reviewed to ascertain whether the recent examination is full and complete, including all special examinations indicated as a result of general examination and the entire case history. Examinations less full and complete than those on which payments were authorized or continued will not be used as a basis of reduction. Ratings on account of diseases subject to temporary or episodic improvement, e.g., manic depressive or other psychotic reaction, epilepsy, psychoneurotic reaction, arteriosclerotic heart disease, bronchial asthma, gastric or duodenal ulcer, many skin diseases, etc. will not be reduced on any one examination, except in those instances where all the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated. Moreover, though material improvement in the physical or mental condition is clearly reflected, the rating agency will consider whether the evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life. 38 C.F.R. § 3.344(a) (1999). If doubt remains, after according due consideration to all the evidence developed by the several items discussed in paragraph (a) of this section, the rating agency will continue the rating in effect, citing the former diagnosis with the new diagnosis in parentheses, and following the appropriate code there will be added the reference "Rating continued pending reexamination.........months from this date, § 3.344." The rating agency will determine on the basis of the facts in each individual case whether 18, 24 or 30 months will be allowed to elapse before the reexamination will be made. 38 C.F.R. § 3.344(b) (1999). The provisions of 38 C.F.R. § 3.344(a) and (b) are applicable in rating reductions for disabilities that have "stabilized" over a 5 year period or more. In such cases, the evidence of record at the time of the reduction decision must demonstrate a sustained and material improvement based on the entire record of pertinent medical evidence. Lehman v. Derwinski, 1 Vet. App. 339 (1991). Moreover, if the evidence of record casts a doubtful shadow upon a reduction in the rating decision, then the proposed reduction will be suspended for one to two years until a reexamination is performed; the RO will re-interpret the record in light of the veteran's entire medical history, with emphasis upon the most recent history. Generally, the best distant vision obtainable after best correction by glasses will be the basis of a rating for vision impairment. 38 C.F.R. § 4.75. Blindness in one eye (having only light perception) warrants a 100 percent evaluation, in addition to special monthly compensation, when corrected visual acuity in the other eye is 5/200 (1.5/60). Blindness in one eye warrants a 70 percent evaluation, in addition to special monthly compensation, when corrected visual acuity in the other eye is 20/200 (6/60). An 80 percent evaluation requires corrected visual acuity in the other eye of 15/200 (4.5/60). A 90 percent evaluation requires corrected visual acuity in the other eye of 10/200 (3/60). 38 C.F.R. § 4.84a, Codes 6067 and 6068. Blindness in one eye (having only light perception) warrants a 40 percent evaluation, in addition to special monthly compensation when corrected visual acuity in the other eye is 20/50 (6/15). A 50 percent evaluation requires corrected visual acuity in the other eye of 20/70 (6/21). A 60 percent evaluation requires corrected visual acuity in the other eye of 20/100 (6/30). 38 C.F.R. § 4.84a, Code 6069. A 10 percent evaluation is warranted for unilateral concentric contraction of the visual field to 60 to 30 degrees, but not to 15 degrees, or for unilateral loss of either the nasal or temporal half of the visual field. A 20 percent evaluation requires unilateral concentric contraction to 15 degrees, but not to 5 degrees, or unilateral loss of the nasal half of the visual field may be evaluated as the equivalent of corrected visual acuity of 20/50 (6/15); contraction to 45 degrees, but not to 30 degrees, or unilateral loss of the temporal half of the visual field may be evaluated as the equivalent of corrected visual acuity of 20/70 (6/21); contraction to 30 degrees, but not to 15 degrees, may be evaluated as the equivalent of corrected visual acuity of 20/100 (6/30); and contraction to 15 degrees, may be evaluated as the equivalent of corrected visual acuity of 20/100 (6/30); and contraction to 15 degrees, but not to 5 degrees, may be evaluated as the equivalent of corrected visual acuity of 20/200 (6/60). These alternative ratings are to be employed when there is a ratable defect of visual acuity or a different impairment of the visual field in the other eye. 38 C.F.R. § 4.84a, Code 6080. A total disability rating (100 percent) for compensation may also be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation without regard to advancing age as a result of a single service- connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combine rating to 70 percent or more. This includes consideration of such factors as the extent of the service- connected disabilities, and employment and educational background. 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19 (1997). The evidence shows that the veteran has one service connected disability, a bilateral eye condition, rated 70 percent. The evidence shows that he has only light perception in the right eye and that the best corrected distant visual acuity in the left eye is 20/25. These findings support no more than a 30 percent evaluation for the bilateral eye disorder under diagnostic code 6074. The veteran also has visual field loss in the left eye due to glaucoma, that is not disassociated from the service-connected left eye disability, that the RO has considered to be an average constriction of 45 degrees that when combined with the light perception of the right eye supports a 50 percent rating under diagnostic code 6069. While the evidence is not clear as to the exact average visual field constriction of the left eye, the VA reports of his eye examinations in 1997 and 1999 do reveal that it certainly is no worse than 15 degrees, and this degree of constriction when combined with the light perception of the right eye supports no more than a 70 percent rating for the bilateral eye condition under diagnostic code 6068. Since the veteran's bilateral eye condition is already rated as 70 percent disabling, and the medical evidence does not indicate entitlement to a rating in excess of 70 percent for the bilateral eye disorder, there is no need to determine the exact visual field constriction of the left eye. The 70 percent rating for the bilateral eye condition has been in effect for more than 20 years and is protected from reduction. 38 U.S.C.A. § 110 (West 1991). The veteran's one 70 percent rating for the service-connected bilateral eye condition makes him eligible for a total compensation rating based on individual unemployability. 38 C.F.R. § 4.16(a). The nonmedical evidence in this case shows that the veteran has been gainfully employed since 1991 making more than the weighted average poverty threshold established at $8316.00 for one person in 1998, effective September 30, 1999. 64 Fed. Reg. 68413 (Dec. 7, 1999). The provisions of 38 C.F.R. § 4.16(a) use the poverty threshold as a standard in defining marginal employment when considering total disability ratings for compensation based on unemployability. The non-medical evidence indicates that the veteran's annual incomes exceed this amount and that he has been gainfully employed as a court officer, as he alleges, since 1991. Since the nonmedical evidence shows that he has been gainfully employed and earning a substantial income for years, the termination of his total rating for compensation purposes was correct and satisfies the procedural protection provisions of 38 C.F.R. § 3.343(c). Faust v. West, No. 98-100 (U.S. Vet. App. Feb. 15, 2000). The veteran's total rating for compensation purposes had been based on his individual unemployability due to his bilateral eye condition, and not due to the severity of this condition as it had been rated 70 percent disabling for many years. Under the circumstances, the procedural protections for total ratings in 38 C.F.R. §§ 3.343(a) and 3.344 are not for application in this case. The preponderance of the evidence is against the claim for restoration of a total rating for compensation purposes based on individual unemployability, and the claim is denied. ORDER Restoration of a total rating for compensation purposes based on individual unemployability is denied J. E. Day Member, Board of Veterans' Appeals